Looking to exercise your First Amendment rights at a protest or a rally without spending a night in jail?
Good—and good luck.
Protests that began on President Donald Trump‘s Inauguration Day have continued throughout the country—as have arrests of both peaceful and violent protesters, as well as journalists covering the unrest. The news hasn’t stopped people from protesting overall, but it may have made some people who might otherwise take part nervous.
More than 200 Inauguration Day protesters were arrested in Washington, D.C., and charged with felony rioting. If convicted, those individuals could face a maximum penalty of up to 10 years in jail and a fine of up to $25,000. It is not clear how many were directly involved in rioting and property damage and how many were innocent bystanders. Prosecutors have dropped charges against journalists who were arrested in the police roundup.
As is typical, the phones of those arrested were seized by D.C. police. A lawyer for the protesters claimed to judges that police were mining the phones for information. Facebook has informed a few protesters that law enforcement has sought access to their accounts. “The government wants to send a message to everyone protesting the presidency of Donald Trump,” says Attorney Jason Flores-Williams, who is representing 17 of the arrested Inauguration Day protesters.
Sweeping arrests of peaceful protestors certainly didn’t begin with Trump. During the Obama administration, hundreds of protesters involved in the Occupy movement were arrested in police sweeps in major cities like New York City and Los Angeles. Journalists and peaceful protestors have been arrested in Black Lives Matters rallies.
All that said, peaceful protests are protected by the United States Constitution. While cities, states, and law enforcement can’t outright ban a peaceful protest, there is plenty they can do to stifle your voice. Cities can put restrictions on time, place, and manner, and they can impose hefty fines for certain violations.
In short, the best way to not get arrested is to not break the law. But most people likely don’t know all the laws on the books. And a dynamic situation like a rally or protest can mean finding yourself in situations you might not expect.
So, what’s the best way to avoid getting arrested in the first place? Here are seven basic rules.
1) Don’t vandalize anything and never take part in any violence
Duh, right? This one goes without saying, but just in case you thought there was some gray area: Violence, destruction of property, or otherwise violating the law could land you in jail and lead to criminal penalties. Do not, under any circumstances, do any of the above.
Reports of police arresting protestors nationwide may make some forget that protesting is a constitutionally protected right—but remember: The U.S. Constitution protects only peaceful assembly.
If you notice anyone committing acts of vandalism or violence, leave the area before you get lumped in with the bad apples and find yourself handcuffed in the back of a police van.
2) Don’t block traffic, sidewalks, or public access points
Participating in protests and rallies that lack the proper permits and block traffic is one of the easiest and most common ways to get arrested. Unfortunately, blocking traffic is also a popular form of non-violent civil disobedience. Taking part in such acts could land you in jail.
3) Don’t protest without a permit or on private property
Not all protests require a permit. A small group protest or rally at a public park that does not burden pedestrian or vehicle traffic is generally protected under the First Amendment, according to theAmerican Civil Liberties Union. But large rallies, marches, parades, and events that require sound amplifying devices like speakers or microphones usually require permits.
Protests on private property are also unlawful. Owners of private property can have protesters to evicted.
The Fourth Amendment also establishes loose criteria by which police can use force to respond to peaceful protesters who overstep the city’s restrictions. As ProPublica notes, an officer can choose to use force based on his own perspective of what is needed on the scene:
“The Fourth Amendment ‘reasonableness’ inquiry is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
4) Don’t form or join a large, uncontrolled group
Veering away from a march’s intended path or rally’s permitted zone can be an easy way to get arrested. If you find yourself in this kind of group, try to separate and distance yourself from the action before it takes a turn for the worst.
5) Don’t make too much noise
Strict noise ordinances in many cities can result in officers arresting you for disrupting the peace.
According to the ACLU of North Carolina, the use of megaphones and mics are generally allowed at protests. But noise complaints can allow the city officials a high level of discretion to begin cracking down on the protest.
“You may use amplification devices as long as your intent is to communicate your message, not to disturb the peace. The government may require permits for music, drums, and loudspeakers, but ordinances should be narrowly tailored so that they prevent excessive noise without interfering with your free-speech rights. Check your local regulations. You may not need a permit to use a bullhorn or megaphone, but the government may ban noisy parties without a purpose, or sound that is ‘amplified to a loud and raucous volume.’”
6) Don’t think trading a sign for a camera is going to save you
While members of the press are well protected by the First Amendment, simply being a journalist or playing the part is not enough to keep police from arresting you.
“There have been tensions for many years between law enforcement and journalists that either got worse or more visible because of YouTube,” says Frank LoMonte of the Student Press Law Center, which has issued guidance to student reporters covering protests that date back to the Bush administration.
The spontaneous nature of recent protests, LoMonte notes, poses numerous challenges to law enforcement. Furthermore, there seems to be no consensus between journalists and law enforcement on what level of access is reasonable for the press.
Police will sometimes believe they can shut down coverage because they sense the coverage is contributing to the mayhem—a belief LoMonte says is incorrect.
“You don’t get to make photojournalists turn off the camera because you think people will behave better when they’re not on television,” says LoMonte. In other words, you have a right to record the police and the protesters in a public space, no matter who you are—just don’t break any laws while you’re doing it.
7) Don’t be rude to the police if confronted
Police may still confront protesters, even if they’re doing nothing wrong. If you are stopped by a police officer, you need to be particularly careful with your conduct. “Stay calm, be polite, and don’t run,” writes the ACLU. “Don’t argue, resist, or obstruct the police, even if you are innocent or you believe that the police are violating your rights.”
You may also have to show your ID to police, as 24 states require under the law. If you don’t have your ID, you could be arrested, depending on the location of the protest. Keep your hands in clear view, and ask police politely if you’re free to go. If the answer is yes, calmly pick up your protest sign and walk away.
